Sunday, August 28, 2011

In a resounding affirmation of the First Amendment, the 1st U.S. Circuit Court of Appeals has ruled that members of the public have a constitutionally protected right to videotape police carrying out their duties in public. The Aug. 26 ruling in Glik v. Cunniffe is important to professional journalists and citizen journalists alike. It is of particular significance in Massachusetts, where a state anti-wiretapping law has been used to chill the public's right to videotape police and other public officials.

The ruling comes in the case of Simon Glik, a Russian-born, Boston lawyer. In 2007, while walking through Boston Common, Glik saw a teenager being arrested by Boston police. After he took out his cell phone and began recording the arrest, the police arrested him for violating the Massachusetts wiretap law, a broadly written law that makes it a crime to intercept "any wire or oral communication."

After a state court judge dismissed all the charges against him, Glik filed a civil rights lawsuit in federal court against the police officers who arrested him and the City of Boston. The defendants asked the court to dismiss the lawsuit based on their qualified immunity from lawsuits as police officers acting within the scope of their duties. The trial judge refused to dismiss the case and the defendants appealed to the 1st Circuit.

The 1st Circuit's decision reads like a textbook on the First Amendment. Here is one key passage:

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment] principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 ... This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. ... Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, ... but also may have a salutary effect on the functioning of government more generally.

The court emphasizes the the right to film belongs not just to members of the news media, but to everyone:

It is of no significance that the present case ... involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the [Supreme] Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press. ... Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film. ... Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

I should note that the Massachusetts Newspaper Publishers Association, for which I serve as executive director, was part of a group of media organizations that sought but were denied permission to file an amicus brief in this case.

Friday, August 05, 2011

Search warrant documents involving rape and drug charges against a prominent Massachusetts developer should not be sealed, Quincy District Court Judge Robert Ziemian ruled yesterday.

The judge ruled that the documents in the case against William O'Connell are public records. The judge rejected arguments by prosecutors and defense attorneys that release of the documents would interfere with O'Connell's right to a fair trial. The judge also disagreed that their release would violate the rights of the victim, noting that any identifying information would be redacted.

Thursday, August 04, 2011

In March, I wrote a post here explaining why I believed the UMass Board of Trustees violated the Open Meeting Law when they went into closed sessions to interview the final candidates for the university president. That post was a follow-up to an earlier post in which State House reporter Dan Ring reported in The Republican that Attorney General Martha Coakley was opening an Open Meeting Law investigation into the trustees' actions.

Today, Ring reports that the AG has issued her findings in the investigation -- and they are harsh. In a 17-page letter, Assistant Attorney General Jonathan Sclarsic writes that the trustees violated the law "throughout the presidential search process" and committee violations that "were wide-ranging and serious."

This is an important ruling from the AG. It underscores a number of the law's requirements as they apply both to executive sessions and to the process of screening and hiring candidates for public jobs. I hope every public official in the state reads this opinion carefully.

At the same time, I wish the AG had imposed a penalty that fit the crime. The "harshest" of the various remedies the AG ordered was for the trustees to undergo training in the Open Meeting Law. This is important, but it amounts to a slap on the wrist now that the deed is done.

I would have preferred to see the AG invalidate the appointment and order the trustees to go through the process in compliance with the law. That would have sent a message they would not soon forget.

Still, the opinion is a strong affirmation of the importance of the Open Meeting Law.

Monday, August 01, 2011

In a post here Friday, Probation Bill Could Shroud Judicial Discipline, I sounded an alarm, writing that a provision within the probation reform bill would have the effect of shrouding judicial discipline in greater secrecy. I was wrong.

As it turns out, the language I referred to is already state law. It is found in M.G.L. Chapter 211B, Section 10(xv).